Suwon District Court 2009Guhap1786 ( October 07, 2009)

early 208 Heavy230 ( December 05, 2008)

Even if farmland was used as a parking lot, it constitutes non-business land.

Even if land is used on a annexed parking lot, it is a voluntary use of the land as a parking lot, and it is not a annexed parking lot established under the Parking Lot Act, and it cannot be deemed a land for business under Article 168-11 (1) 2 of the former Enforcement Decree of the Income Tax

l. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The decision of the first instance court shall be revoked. The defendant revoked the disposition of imposition of capital gains tax of 176,103,880 won for the transfer income tax of 2007 against the plaintiff on June 1, 2008 (for each of the reasons stated in the complaint and the purport of appeal, it appears that it is erroneous in writing).

1. Quotation of judgment of the first instance;

The reasoning of this court's explanation concerning this case is as follows: "No. 17 to 20 of the judgment of the court of first instance" is added to "No. 17 to 20 of the judgment of the court of first instance" and "the witness of the same behavior" is added to "the witness of the court of first instance", and the plaintiff's new argument at the court of first instance is as stated in the reasoning of the judgment of the court of first instance, except for addition of the following judgment as to the plaintiff's new argument at the court of first instance. Thus, this is cited in accordance with Article 8 (2) of the Administrative Litigation

2. Additional determination

The plaintiff asserts that the disposition of this case, which applied the heavy taxation rate, is unlawful, since the land attached to an attached parking lot under Article 104-3 (1) 4 (c) of the Income Tax Act and Article 168-11 (1) 2 of the Enforcement Decree of the Income Tax Act, is the land for business, although the land of this case is not self-farmland.

Article 104-3 (1) of the former Income Tax Act (amended by Act No. 9270 of Dec. 26, 2008; hereinafter the same) provides that the land for non-business use, such as farmland, etc., the owner of which does not reside in the location of the farmland or which is not cultivated by himself/herself, as prescribed by Presidential Decree, shall be excluded from the land for non-business use. As stated in subparagraph 4 (c) of the same Article, the land, such as farmland, forest land, and stock farm land, which has considerable reasons for deeming that it is directly related to his/her residence or business in consideration of the fulfillment of the obligations under the current use and related Acts, and the amount of income, etc., among the land other than the land for non-business use. Accordingly, Article 168 (1) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301 of Feb. 4, 2009; hereinafter the same) provides that the parking area is land for parking lot.

According to the above facts, first of all, the land in this case is farmland under Article 104-3 (1) 1 of the former Income Tax Act and falls under the land for non-business as prescribed by Presidential Decree and its owner does not reside at the seat of the farmland under conditions prescribed by Presidential Decree. Even if it is used as the land for a annexed parking lot, as alleged by the plaintiff, it is merely a voluntary use of the land for a parking lot, and it does not fall under the land for business under Article 168-1 (1) 2 of the former Enforcement Decree of Income Tax Act, since it is not an annexed parking lot established by the Parking Lot

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.